Restructuring Ghana's Legal System
Kojo Smith
A change has been demanded, but no one has put forward any serious arguments about what is wrong with the judicial system... there is absolutely no need to make a fetish of legal technicalities which, up to now, no one has cared to explain what they are to the public.AS RAWLINGS and the PNDC rounded up their second year in office on 31st December, it is very important that all sober and level headed Ghanaians use the occasion to reflect on the state of affairs of our nation and to observe five minutes silence in memory of the death of Mrs Justice Cecilia Koranteng Addow, Mr Justice F. K. Starkodee and Mr Justice Agyapong, the three high court judges, who were murdered in cold blood by officials of the PNDC Government.
Their deaths and the eventual discovery of the decomposed bodies had saved the nation from a long night of horror because, had their bodies not been found, many more people would have been murdered in similar fashion and others would have disappeared from the surface of the earth without a modicum of a clue as to what might have happened to them.
The occasion also deserves the analysis of why the judicial system and judges have borne the brunt of the severest onslaught of the PNDC government.
Shortly after the abduction of the three judges, various supportive organisations of the PNDC, especially the June 4th Movement and the New Democratic Movement issued a joint statement. The movement said they realised that 'the three judges had been carefully chosen as those who during the PNP period gave unpopular decisions in cases affecting people convicted during the AFRC period.' They also stated that the present judicial system did not favour the revolution. It is however, most difficult to discern why these people could be so infuriated emotionally that only the spilling of the blood of these judges in the most inhuman manner could pacify their impaired feelings.
On 5th January 1982, the chief tribunals architect of the Revolution, Flt-Lt Rawlings hinted in a radio and TV broadcast that "the government intended to establish public tribunals in which dispensation of justice itself will be democratised. He explained that such tribunals were necessary to prevent the courts being fettered by technical rules which in the past have perverted the course of justice and enabled criminals to go free".
True to his word, Rawlings inaugurated the first public tribunals in Accra on 26th August 1982, and they began sitting in earnest on 31st August. It appears that the major reason for the acrimony against the judicial system is one of legal technicalities. To bring the point sharply home to the people, Mr Addo-Aikins, President of the People's Court angrily overruled an objection in which an accused person before the tribunal had been tortured in custody and had a cracked lower lip, black eyes and a plastered wound on the left temple.
Mr Aikins said: "We are in a revolution, don't you realise that? We are not going to entertain any legal technicalities. We have changed the legal system." The accused was jailed for ten years. He therefore suffered double punishment, the torture while in custody and the imprisonment.
What justice do the people of Ghana then receive today under the PNDC? The tribunals are analogous to an inquisitorial system which is inimical to the interest of the accused. Confession statements no matter how they are obtained are acceptable at the tribunals.
A few days after the June 19th abortive coup, organised workers without remorse announced that the masses had taken over the Supreme Court buildings, the judicial council dissolved and the post of Chief Justice abolished. They said the Law School had also been closed down indefinitely. Another statement issued later by the WDCs of Accra and Tema said that 'the time had come to do away with the old judicial system and to replace it with a more dynamic and egalitarian people's judicial system. They had planned in the meantime that the Public Tribunals Board would constitute an interim people's judicial service, with one layman from the National Defence Committee and representatives from each of the farmers and fishermen organisations.
It is very difficult to understand the motive behind this unwarranted confrontation and assault against the judiciary since there has not been any allegation that some judges were connected with the events of 19th June. It would appear that some individuals who have a personal axe to grind with the system are hiding behind these I workers to wreak whatever vengeance they have.
A change has been demanded but no one has put forward any serious arguments about what is wrong with the judicial system or even provided a credible alternative system. All that has happened clearly shows that people have allowed their emotions to take over. There is absolutely no need to make a fetish of these legal technicalities which up to the present no one has cared to explain what they are to the public.
The PNDC regime has poured so much venom and bile against the judiciary, yet no single evidence has been advanced to substantiate the allegations which make it imperative to substitute the traditional courts for the tribunals. There is equality before the law in the traditional courts both for ordinary and important people and all Ghanaians have been subjected to the same laws. The case of the Republic versus Ohene Djan is a case in point.
At the durbar to round off the Homowo Festival at Labadi last October, Rawlings asked Ghanaians to closely observe the public tribunals and courts and judge for themselves which of the two institutions was in their best interest. But the performance of the tribunals over the past fifteen months has not enhanced the quality of justice.
Under the traditional courts the judges are well-trained and very experienced. They are also experienced qualified lawyers who have distinguish- ed themselves in legal practice. As a well-established rule appointments to the Bench are made among men and women of ripe age who are highly intelligent and who have many years of experience at the Bar.
It should also be observed that it takes five years of learning and training to produce a lawyer and almost invariably several thousands of the taxpayers' money. With the Public Tribunals the members are mostly laymen with little or no knowledge in the law. They are people who have been selected by the PDC's, political organs established by the government and therefore likely to be manipulated. The few lawyers on the tribunals are inexperienced in legal practice and have no experience at all on the Bench.
If something had gone wrong with the drafting of the legislation under which the tribunals are operating it would have been difficult for these untrained and inexperienced members of the tribunals to do justice. The role of the laymen on the tribunals is already well catered for by the jury system under the judicial system, where jurors decide matters of fact while the judges decide all questions of law.
With the traditional courts there are well-established precedents and time tested rules of procedures where the ends of justice are never perverted as there is always a high standard of care in all criminal proceedings. Apart from statutory laws, the law has grown up gradually from precedent to precedent concerning rights of individuals or groups. Anyone who has not studied law will be hard put to it to administer justice. Under the public tribunals where new and untested methods of proceedings are being applied there is the likelihood of trial and error approach which could lead to substantial miscarriage of justice.
The tribunals have summary jurisdiction which is nothing more than rough and ready justice presented under the cloak of legal respectability since there is no right of appeal. Though these tribunals have the powers of depriving a person of his life they have no safe-guards to rectify human errors of judgement. Under the traditional courts system all those who are aggrieved or dissatisfied with the judgement or decision of any court have the undeniable right to appeal to a higher court. This can go on until the case reaches the Supreme Court which is the highest court of the land.
If Amartey Kwei and his colleagues had been tried by the ordinary courts they would have had the opportunity of appealing and it would have been possible for fresh evidence to be provided and which could have shed more light on the case. A recent murder case in London in which a man had been wrongly convicted clearly illustrates the point of the error of human judgement.
Mervyn John Russell was convicted of the murder of Miss. Jane Bigwood, a 20 year old art student and sentenced to life imprisonment at the Old Bailey in 1977. He subsequently lost his appeal. The case was referred to the Appeal Court again in February this year by the Home Secretary after being featured in the BBC-TV Series 'Rough Justice' in April 1982. Fresh evidence provided by a consultant pathologist proved that a handful of hair which the dying student plucked from the head of her killer was not of Russell.
Freeing Russell, the Lord Chief Justice, Lord Lane said if that evidence had been before the trial jury the verdict might very well have been different. He added that 'to say we have been troubled by the new evidence is a grave understatement.' A commentator said later, 'It is a lamentable feature of our system that jurors do make mistakes.' If these safeguards were absent Russell would have continued to stay in prison for life wrongfully and in some countries like Ghana he would have been executed and any fresh evidence in his favour would have been useless since it would not have been possible to call him back from the grave.
Unlike the Courts over which the Chief Justice is the head and administrator the tribunals are under the whims and caprice of Rawlings and the PNDC, thus violating one of the most important tenets of law, that no one should be a judge in his own court (Nemo Judex in Causa Sua) The public tribunals unlike the traditional courts do not conform to internationally recognised standards of justice.
There is absolutely no discernable justification for the creation of the tribunals or people's courts. The cases before the tribunals could reasonably and professionally be well-handled by the ordinary courts.
Whatever the fault of the judicial system, the only reasonable approach is to reform it but not to abolish it or side track it. The present attempt to create a new legal framework will be a futile exercise in jurisprudence.
It is my contention that among the many mistakes, and the greatest of all, which have been committed by the PNDC are the establishment of a dictatorial regime and the creation of Public Tribunals under PNDC Law 42.
On 18th February 1983, the government promulgated PNDC Law 42, the Provisional National Defence Council (Establishment) Proclamation (Supplementary and Consequential Provisions) Law with retroactive effect from 31st December 1981. This law abro- gated the 1979 Constitution and gave the PNDC, and particularly, Flt-Lt Rawlings, wide arbitrary powers over all Ghanaians.
Sec 63 (3) of PNDC Law 42, specifies that: 'Any reference in this law, the Proclamation or any other law to powers of government, shall be construed to include legislative executive, administrative and judicial powers."
According to section 63 (1) the Proclamation refers to the Provisional National Defence Council (Establish- ment) Proclamation, 1981.
Section 1 (5) of that Proclamation gives the PNDC total governmental power. This means that from 18th February 1983, the PNDC retroactiv- ely assumed total power including judicial power.
In politics, it is always such accumulation of power in the hands of one man that has often led to oppres- sion, violence and eventually anarchy.. It has been said and that holds to be the truth that 'power tends to corrupt and absolute power corrupts absolutely'. The PNDC Law 42 puts into the hands of one man, Flt-Lt Rawlings the Legislative, Judicial and Executive powers.
This in legal jurisprudence is absol- ute power. Rawlings might arrogantly be proclaiming to the nation from the top of his armoured car that his intention is to give the people what he calls 'participatory democracy' which, to my mind, is a contradiction in terms. What Rawlings may not understand since he is not a lawyer is that at the moment Law 42 is the supreme and fundamental law of the country and therefore the Constitution of Ghana. What constitutional law determines is the form and mode of government. In the present situation, Rawlings has created a totalitarian regime in Ghana, whereas on the 31st December 1981 when he embarked upon his adventure to seize power he told the people that he had not come to impose himself on the nation.
PNDC Law 42 amounts to abuse of legislative power as the law, no doubt, establishes the rule of dictatorship. This obviously is not the intention or wish of Ghanaians who have fought so hard over the years to resist colonial- ism, and dictatorship of varying degrees both under Nkrumah and Acheampong.
The dangers inherent under PNDC Law 42 is that apart from the government being capricious and whimsical, a great gulf of credibility has been created in the administration of justice. How can people believe that when they have a case against the government they will have a fair trial in a court established by the government. However fair that court might be it will be difficult to convince the world that the Tribunals have not been specifically designed to witchhunt certain people.
The other danger is that every Ghanaian is at the mercy and sufferance of Rawlings regarding individual rights. On 14th March this year, while addressing the annual law week of the Law Students Union the Chief Justice, Mr Justice F. K. Apaloo made the following comments inter alia:- "Section 63 (3) of the PNDC Law virtually makes the government of the PNDC the highest court in the land. That seems to me as unprecedented as it is dangerous'
The Chief Justice also expressed concern at the absence of a right of appeal at public tribunals. During the Nkrumah era, all those who were alleg- ed to be attempting to overthrow the government were brought before the ordinary courts of law. Although Nkrumah might not have liked the judgments of the Courts he was never courts. tempted to institute private courts. Even during the Acheampong era, coup makers were tried at legally constituted courts martial. No private Courts were set up to try enemies of the State.
PNDC Law 42 clearly exposes the sinister motive and intention for the creation of the tribunals. Their establishment is a way of diverting the people's attention from the pressing and urgent needs of the nation. They are also instruments of terror to suppress the political opponents and enemies of the regime. Seeing through this motive of the Government the Bar Association at its annual conference in Kumasi last year noted that the setting up of the People's Courts to supplant the ordinary courts in Ghana was a misguided attempt.
With the traditional courts it would be difficult for Rawlings and his friends to put their political opponents into prison or to death since every piece of allegation or evidence would be subjected to reasoned and learned arguments by trained and experienced lawyers.
It is precisely because of these dangers that many modern nations, civil, military or one party states have adopted the doctrine of the separation of powers formulated by the distinguished French jurist Montesquieu. Under this doctrine the various functions of government are exercised by different hands. The Legislature makes, the executive applies and the judiciary interpretes the law.
There is great wisdom in the formulation of this doctrine and it is only through this concept that all Ghanaians can enjoy true justice, because it prevents tyranny and makes for freedom, under checks and balances. It is of crucial importance that judges must be absolutely independent and free from any influence by those who wield power. It is this independence which gives the people their confidence in the judges otherwise they cannot be trusted to decide on issues that affect the individual and the State.
Today the Chief Justice of Ghana has become a nominal figure head. He is completely impotent in so far as the tribunals are concerned. Even though the supreme court judges are still under the judiciary one wonders whether they still perform their traditional role as guardians of our constitution, which no longer exists or are they the protectors of PNDC Law 42?; the law which has so much truncated the powers of the courts as to make their existence a mockery. It is even strange that with the establishment of PNDC Law 42 no attempt has been made officially to abolish the traditional courts.
CONFIDENCE
It is my sincere recommendation that it will be in the interest of all if the country is returned to constitutional government and the judicial system given its proper role. An atmosphere of peace, mutual trust and confidence should be created to enable judges to carry out their work. All Public Tribunals should be abolished and their cases transferred to the judiciary. It is further recommended that like the law reform Commission, a high powered judicial reform commission be established to do the following:1. To investigate any shortcomings in the judiciary e.g. Legal technicalities, and procedures so much complained of and those which are likely to hinder justice.
2. To collect and collate any other complaints against the Legal System. 3. To receive memoranda from the public as to any suggestions for reforms of the Legal System.
4. The Commission should sit in public to hear evidence from anyone interested to do so.
5. And the Commission should work with a time schedule in the shortest possible time to present its recommendations to the government for immediate implementation.
